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Hazelman v State [2015] FJCA 103; AAU0127.2014 (13 August 2015)

IN THE COURT OF APPEAL
[On Appeal from the High Court]

CRIMINAL APPEAL NO.AAU 0127 OF 2014
[High Court Criminal Case No. HAC 077of 2013]

BETWEEN:

DENNIS MARK HAZELMAN
Appellant

AND:

THE STATE
Respondent

BEFORE : The Hon. Mr. Justice Daniel Goundar
Counsel : Mr. M. Yunus for the Appellant
Mr. M. Delaney for the Respondent

Date of Hearing : 5 August 2015
Date of Ruling : 13 August 2015

RULING

[1] The appellant was tried on two charges in the High Court at Suva. The first count was rape. The second was an alternative count of defilement. The assessors found him not guilty on both counts. The trial judge did not accept the assessors' opinions and convicted the appellant on the count of rape and sentenced him to 11 years' imprisonment with a non-parole period of 9 years.

[2] This is a timely application for leave to appeal against conviction and sentence on the following grounds:

1. The Learned Trial Judge erred in law and in fact when he failed to direct and/or failed to provide any assistance to the assessors about the defence of defilement.
   
2. The Learned Trial Judge erred in law and in fact by allowing the photograph of the victim to be tendered as prosecution evidence despite non-disclosure of the said photographs to the Appellant and/or his counsel.
   
3. The Learned Trial Judge erred in law by not providing cogent reasons for departing from the opinion of the assessors.
   
4. The Learned Trial Judge erred in principle and also erred in exercising his sentencing discretion to the extent that the non-parole period is too close to the head sentence resulting in much more severe punishment.
   

[3] The first ground of appeal relates to the statutory defence for the offence of defilement. Defilement is an offence under section 215(1) of the Crimes Decree 2009. At the time of the offence, the victim was 13 years old.

Subsection (2) states:

"It shall be a sufficient defence to any charge under sub-section (1) if it shall be made to appear to the court that the person charged had reasonable cause to believe, and did in fact believe, that the person was of or above the age of 16 years".

[4] For the proviso to apply, the onus of proving, on the balance of probabilities, that the accused had reasonable cause to believe and did in fact believe that the girl was over the age of sixteen years of age, rests on the accused. (Mithun Vimal Sami v State unreported Crim. App. No. AAU 0046 of 2002S; 26 November 2004 at [23]).

[5] At trial, the appellant denied having sexual intercourse with the victim. There was no evidence that he had reasonable cause to believe and did in fact believe that the victim was over the age of sixteen years. The proviso had no application and the trial judge made no error in not directing on the defence. Ground one is not arguable.

[6] Ground two relates to the admissibility of the victim's photograph. The complaint is that the photograph was not disclosed to the defence before the commencement of the trial. Non-disclosure does not make evidence inadmissible. If evidence is relevant, it must be led.

[7] The appellant was represented by counsel at the trial. It appears that when the prosecution led the evidence of the photograph, the appellant's trial counsel took no objection to its admissibility on the ground of non-disclosure. If an objection was taken, the trial judge could have adjourned the case to allow the defence to consider the evidence. But by not taking an objection, the defence indicated to the trial judge that the defence case was not affected by the non-disclosure of the victim's photograph. In other words, there was no prejudice to the appellant arising from the admissibility of the victim's photograph. This ground is not arguable.

[8] The third ground relates to the trial judge's reasons for not accepting the not guilty opinions of the assessors. The prosecution case was substantially depended on the credibility of the victim. She said the appellant had forced her to have sexual intercourse with him. The appellant said he did not have sexual intercourse with the victim at all. The trial judge's reasons for convicting the appellant are brief. The trial judge summarized the salient evidence but he made no findings of credibility before convicting the appellant. This ground is arguable.

[9] The sentence appeal relates to the non-parole period. It is argued that the non-parole is too close to the head sentence. The non-parole is two years less than the head sentence. It is clear that the appellant has been given a reasonable opportunity to rehabilitate. In my judgment the sentence appeal is not arguable.

[10] Result

Leave to appeal conviction granted on ground three only.
Leave to appeal sentence refused.

.........................................
Hon. Mr. Justice Daniel Goundar
JUSTICE OF APPEAL

Solicitors:
Office of the Legal Aid Commission for the Appellant
Office of the Director of Public Prosecutions for the Respondent